Some Problematic Areas Of Delhi HC Video Conferencing Rules : Marking Of Evidence, Remand Of Accused, 313 Statement Etc

The Rules describe the human, technical and physical elements which would be required for the conduct of online or virtual hearings. They provide for the procedure to be adopted for conduct of the proceedings and for powers to adjudicate on the costs associated with the conduct of court proceedings through video conferencing. The notification of these Rules by the Delhi High Court is as laudable as historic as the Court seeks to lead the charge in resumption of as much court work as possible amid the pandemic.

A word of caution though is important at the inception stage of these Rules. These Rules have been issued in exercise of powers under Article 225 and Article 227 of the Indian Constitution. While an effort has been made to make procedure prescribed in all relevant statutes applicable to video conference hearings, the basis for such application may not exist where the legislations themselves do not allow for proceedings to be conducted through video conferencing.

As per Rule 3, sub-rule (iii) of the Rules, all relevant statutory provisions applicable to judicial proceedings including provisions of the CPC, CrPC, Contempt of Courts Act, 1971, Indian Evidence Act, 1872 (Evidence Act), and Information Technology Act, 2000 (IT Act), shall apply to proceedings conducted by video conferencing. Let's look at some specific provisions.

As per Rule 9 of the Rules, for exhibiting or showing a document to a witness, the document may either be at the 'Court Point' or the 'Remote Point' and can be transmitted to the other end by sending across an image/copy of the document. If we were to consider the scenario in which an original document is sought to be proved by the author of the document who is being examined at the Remote Point, the original document will either be at the Court Point or at the Remote Point. If it is at the Remote Point, there will be no actual physical production before the Court since only an image (which by definition is secondary evidence of the original document as per Section 63 of the Indian Evidence Act) will be available before the Court. Similarly, if it is at the Court Point, the witness will have no means to see the original document but only its image (i.e. secondary evidence) transmitted from the Court Point. Section 62 of the Indian Evidence Act defines primary evidence as production of a document itself for inspection by Court and does not provide for primary evidence of such document being lead by way of audio-video means.

As per Rule 11.1, judicial remand in the first instance or police remand can be granted through video conferencing (in exceptional circumstances for reasons to be recorded in writing) while proviso (b) to Section 167 (2) CrPC provides to the contrary and bars granting of police custody through video conferencing and limits use of 'electronic video linkage' while accused is in judicial custody and its extension is sought. Similarly, as per Rule 11.2, the Court may examine a witness or an accused under Section 164 CrPC or record statement of an accused under Section 313 CrPC through video conferencing (in exceptional circumstances, while observing precaution to ensure that the testimony is voluntary and not coerced). A look at Section 164 and Section 313 in the CrPC would show that while the former Section expressly allows for recording of statement of a witness or an accused through video conferencing, the latter does not provide for recording the statement of the accused through it. Interestingly, while both Sections 164 and 313 were amended by Code of Criminal Procedure (Amendment) Act, 2008 (hereinafter, "2008 CrPC Amendment Act"), a provision was introduced to record statements through audio-video electronic means under Section 164 while no such provision was added to Section 313. There is therefore merit in the argument that the legislature did not intend to provide for recording of statement under Section 313 through video conferencing in any scenario, in the CrPC as it stands currently.

We can safely conclude that the Rules provide for certain procedural mechanisms which are either not provided for in the existing legislations or may stand in direct contravention of the provisions of those statutes. The question that naturally follows is whether the High Court has such powers under Article 225 and 227 to introduce certain procedural mechanisms which stand contrary to existing legislation.

Examination of the scope of powers under Article 225 and 227 would yield an answer in the negative. As per Article 225, any Rule made by the High Court is subject to the "law made by the appropriate legislature". If the Evidence Act does not provide for proving of original documents through audio-visual means or if proviso (b) to Section 167 (2) expressly bars granting of police custody through video linkage, the High Court under Article 225 does not have the jurisdiction to frame rules that stand in contravention to the legislation. While the scope of Article 225 has been discussed in several authoritative judgments, reference may be had to the 2016 judgment in Ajay Arjun Singh vs. Sharadendu Tiwari and Ors. (2016) 6 SCC 576 where it was held as under:

"…(b) The Rules of the High Court are framed by the High Court pursuant to the power vested in it Under Article 225. The exercise of such power is subject to the provisions of the Constitution and the "provisions of any law of the appropriate legislature". Rule 13 mandates the listing of certain matters (nature of which is described therein) before a Division Bench. Such stipulation is contrary to the stipulation of Section 80A(2) that election petitions are to be tried by a single judge of the High Court leaving a discretion in the Chief Justice to decide whether in a given case, an election petition shall be heard by more than one Judge. Such a statutory discretion vested in the Chief Justice of the High Court cannot be curtailed by a rule made as the High Court in view of the clear declaration by the Constitution (in the opening clause of Article 225) that "any rule shall be subject to the law made by the appropriate legislature".

Similarly, the powers of superintendence under Article 227, while expansive in scope, cannot be used to expand the jurisdiction of the courts subordinate to the High Court. The decision of the 5-judge Constitution bench in Waryam Singh and Ors. vs. Amarnath and Ors. AIR 1954 SC 215 delivered in 1954 which still serves as the guiding light for decisions on scope of powers under Article 227 held that the power under the Article is to be "exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." If the magistrate has no authority to order extension of remand in Police custody through video conferencing since the CrPC expressly bars it, the High Court cannot confer such authority on its such subordinate court.

A look at the Supreme Court decisions on the issue of video conferencing shows that recording of evidence is permissible through video conferencing in criminal trials (as initially held in The State of Maharashtra and P.C. Singh vs. Praful B. Desai and Ors. (2003) 4 SCC 601 and incorporated in proviso to Section 275 CrPC vide the 2008 CrPC Amendment Act) and conduct of proceedings in matrimonial matters has been allowed to be done through video conferencing (important to note that family courts have wide powers to modulate procedure). There is however no discussion on some other issues which are subject matter of the Rules – for instance, examination of accused under 313 CrPC through video conferencing or the power to extend the remand in police custody under Section 167 CrPC through video conferencing. Further, the Supreme Court has a very wide power under Article 142 to do "complete justice" while the High Court has no such jurisdiction under Article 225 or 227 of the Constitution.

In absence of corresponding legislative changes to support certain Rules, they are vulnerable to a strong challenge and may be declared as ultra vires. This legal challenge may be made later than sooner, and in case it is sustained, all proceedings conducted as per Rules eventually declared ultra vires may be subjected to great confusion and uncertainty. It seems just right to preclude such a possibility by brining in appropriate legislative changes while ushering in an alternative era of how courts and its stakeholders function.

(The author is a lawyer practising in Delhi, and may be reached at lakshyagupta2012@gmail.com. Views are personal)